Harvey Short v. William Fox, No. 10-6729 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6729 HARVEY P. SHORT, Petitioner - Appellant, v. WILLIAM M. FOX, Warden, Respondent - Appellee. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:10-cv-00002) Submitted: August 26, 2010 Decided: September 3, 2010 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Harvey P. Short, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Harvey P. Short seeks to appeal the district court s order accepting the recommendation of the magistrate judge and denying relief without prejudice on his 28 U.S.C. § 2254 (2006) petition for failure to exhaust state court remedies. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. certificate of 28 U.S.C. § 2253(c)(1) (2006). appealability will not issue absent A a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2006). relief on the merits, demonstrating district that court s debatable or a When the district court denies prisoner reasonable assessment wrong. satisfies jurists would of the v. McDaniel, Slack this standard find that U.S. the claims constitutional 529 by is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at the 484-85. conclude We that have Short independently has not made reviewed the record requisite and showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. adjudicate his Short s state motion habeas to compel corpus 2 the petition state is court denied. to We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3